Malachi Subecz panel recommends mandatory reporting, information sharing

Five-year-old Malachi Subecz's death has led a panel to recommend mandatory reporting of children at a high risk of harm, but the government is not yet committing to it.

The report by an independent panel led by Dame Karen Poutasi found five gaps in the system, and made 14 recommendations. The government has said it will adopt nine and "look carefully" at the remaining five - which includes the mandatory reporting.

The report also found inadequate sharing across agencies, meaning some of those harming children had been able to hide it, putting vulnerable children at risk of becoming "invisible".

Malachi died in hospital in November 2021 after prolonged abuse at the hands of Michaela Barriball, who became his full-time caregiver after his mother was imprisoned earlier in the year.

Barriball was jailed for life with a minimum non-parole period of 17 years in June.

His whānau had complained to Oranga Tamariki multiple times over concerns for his safety. Barriball had resisted repeated attempts from Malachi's family to obtain custody.

"At no time was the system able to penetrate and defeat Ms Barriball's consistent efforts to hide the repeated harm she was causing to Malachi that culminated in his murder," the report said.

The Review of Children's Sector Response to Abuse looked into how six different government departments or agencies which came into contact with Malachi might have been able to prevent his death.

Dame Karen asked police, and the ministries of education, corrections, justice, health, and social development to conduct reviews into their interactions, while Oranga Tamariki was carrying out its own separate review into its handling of events.

The report identified five critical gaps in the system:

• When sole parents are charged and prosecuted, the needs of dependent children are not well enough identified
• The process for assessing risks to a child is too narrow and one-dimensional.
• Agencies and services are not proactively sharing information, despite having the ability.
• A lack of professionals' and services' reporting of risk of child abuse
• The system allows children to remain "invisible" even at key moments

Dame Karen said Malachi became "an invisible child" because there were those who tried to act but weren't listened to, those who were uncertain and didn't act, and those who knew and chose not to act.

"It is a tragedy he has only become the centre of attention because he was killed. He should have been noticed and his needs should have been front and centre throughout, but instead, even when he was sitting in front of adults, he was not properly seen," Dame Karen wrote.

Mandatory reporting by professionals and others working with children at high risk of harm and increased information sharing was not a new suggestion, she said.

"I find it unacceptable that I need to once again make similar findings about how the system is - or is not - interacting. The majority of my recommendations are not new," she wrote.

She also recommended Oranga Tamariki vet the carers of children whose parents were arrested or in custody, and conduct regular follow-up checks while that parent was in custody.

Barriball received a benefit while caring for Malachi. Dame Karen said the Ministry of Social Development should inform Oranga Tamariki when a caregiver who's not a formal guardian and has not been reviewed or authorised requests a sole-parent benefit while the parent is in prison.

In October, Chief Ombudsman Peter Boshier also found Oranga Tamariki failed to take the "bare minimum" action over concerns for Malachi's safety.

Boshier said there was no evidence Oranga Tamariki spoke to Malachi about his living situation, nor did it carry out a safety check on his caregiver's home.

He accused Oranga Tamariki of a "litany of failures".

The senior staff at Oranga Tamariki who were involved in the case no longer work at the organisation.

In a written statement, Minister for Children Kelvin Davis said the majority of recommendations were being adopted but mandatory reporting automatic vetting of caregivers when sole parents were imprisoned would need to be looked at in depth by ministers and Cabinet next year.

"Mandatory reporting could see a potential flood of unnecessary reports. We need to find the right balance between reporting cases that need to be flagged and teachers and others reporting out of fear they might be penalised if they don't," he said.

"The process around vetting of caregivers for parents in jail needs to be considered carefully too, but we are committed to looking closely at the options and we will take action to help ensure something like this does not happen again."

Recommendations* and government response:

• Oranga Tamariki should vet carers when a sole parent is arrested or taken into custody. Police and the courts need to allow time for this. Further advice needed.
• Oranga Tamariki should do regular follow-up checks on these approved carers. Further advice needed.
• Multiagency teams working with iwi and non-government organisations should be set up, resourced and supported nationwide. Accepted.
• Medical records held in different places should be combined and available for health workers working with children. Accepted.
• The Child Protection Protocol between police and Oranga Tamariki should also include the health sector, with access for health professionals skilled in identifying child abuse. Accepted.
• The Ministry of Social Development should tell Oranga Tamariki when it has not assessed a non-lawful guardian caregiver of a child and the caregiver seeks related benefit support. Further advice needed.
• Child welfare agencies and workers should be educated about the Oranga Tamariki Act information sharing regime. Accepted.
• Services and employees who work with children should be required to report suspected abuse to Oranga Tamariki (mandatory reporting), with jobs this applies to listed in legislation. Further advice needed.
• Mandatory reporting about risk of harm should be backed by a guide on red flags, regular required training with certification, and the option of undergraduate courses on risks and signs of child abuse. Further advice needed.
• Early childhood education services should be actively monitored on child protection policies by Ministry of Education and the Education Review Office. These agencies should regularly review policies. Accepted in principle.
• Agencies in the government's children's system should be specifically defined in legislation. Accepted in principle.
• The agencies defined as part of the system should have specific responsibility in their founding laws making clear they share responsibility for checking children's safety. Accepted in principle.
• Regular public awareness campaigns to inform the public about red flags and signs of abuse with the message: 'don't look away'. Accepted.
• These recommendations should be reviewed by the Independent Children's Monitor after a year. Accepted.

Dame Karen said the system proposed by the recommendations would offer a series of "purposely constructed and hardwired" safety nets.

"The acceptance of nine recommendations is good, the working on more complicated ones is good. And I think that's what we have to hold clear - that if it were easy it would have been done yesterday.

"It's a sad litany of past reports that we've got behind us and we have to look to a future where we improve on that. I do think the time is right for some of the changes that I've recommended that perhaps weren't able to be implemented before."

Mandatory reporting would remove the uncertainty as to whether, when and how significant risk of harm should be reported by those who work with children.

Mandatory reporting had been seriously considered in New Zealand at least twice in the past, and she was confident concerns about over-reporting could be managed, after having spoken with agencies in New South Wales and Victoria, she said.

"That risk is managed by the package that you put around mandatory reporting - being very clear about the criteria for significant risk, having support and training, and being able to be clear about who are mandatory reporters."

Having a system of on-the-ground support like in New Zealand and Victoria made such a system more possible, Dame Karen said.

Kaupapa Māori, iwi and non-government organisations' work on the ground covered about a third of the country, but this needed to be expanded, she said.

"They can work with families to detect risk in ways that others can't.

"The other side of mandatory reporting is you don't have to consider whether it's a good thing to be doing or not - it is something that you must do in order to protect the child - and if we have the child, if we have the tamariki at the centre then the rest flows naturally."

It was important to look at all the recommendations because they "stack together as a package".

Some of the changes would take longer to achieve, "but if we are working towards that package of change ... then that will help us while we are putting in place the recommendations", Dame Karen said.

She was confident the various agencies could implement the recommendations, saying there were good people working hard in the system.

The Public Service Act meant the system was better set up to respond than in the past, she said.

"Resourcing is tight and if we're going to make progress here then we do have to sustainably resource, remembering that if we do this well then ultimately other sorts of resources will not be necessary.

"Everybody wants to do this well, nobody wants children to be falling through those gaps that I've identified.

"I understand people are tired of waiting. We have a very bad history in New Zealand of child abuse, however, there are some things we can do smartly, there are other things we need to take time to do properly...

"The circumstances of Malachi Subecz's abuse and death are a tragedy. Malachi's mother and family have shared their grief with us in order that such a tragedy should not befall another child.

"I've worked in the system as you'll all know for some time. This is critical for New Zealand. If we can't get this right then we have failed."

Ministers respond to the report

Minister for Children Kelvin Davis said "every child in Aotearoa is entitled to a safe up bringing, to grow up without fear of mistreatment, sadly that is not always the case.

"The treatment of children in New Zealand is a dark shame. Oranga Tamariki receives almost 70,000 reports of concern each year."

The system is not just Oranga Tamariki, he said. Often at the point OT was notified, the child and their family had already come into contact with several other government agencies, he said.

"When considering this wider network, there cannot be gaps that allow the children who are most at risk to go unheard, to be invisible as Dame Karen noted in her review.

"It is obvious that the system failed Malachi and his family, for that I am deeply sorry and together with Oranga Tamariki, we will make that apology in the most appropriate way."

All recommendations that could be made immediately or in principle had been accepted, he said.

They included designing a better monitoring system for early education, legislating to clearly define agency's responsibilities and improving information sharing.

OT had already taken action to address its failings such as strengthening the site in question and working to ensure other sites facing similar pressures are better supported, he said.

Other more complex recommendations would be considered carefully by government, he said.

They include mandatory reporting and automatic vetting of caregivers when a solo parent went to prison.

"I know that will be frustrating for Malachi's family and the public but the worst thing we could do is commit to a knee jerk action that could make things worse for children."

Davis said none of the senior staff involved in Malachi's case worked for OT anymore.

Regarding vetting of sole parents who have gone to prison, Davis said the government should probably also look at sole parents who had unexpectedly gone to hospital, or mental health facilities, or unexpectedly gone overseas for work to avoid loopholes.

What stood out for Davis in the report was the lack of safety nets if one agency did not do what it should.

Minister of Health Andrew Little said one of the reasons for the health reforms was the integration of health information systems.

"If that system was in place when Malachi was taken to various health professionals, health professionals might have seen that actually his condition had got worse in the period that he'd been with this particular caregiver."

Asked how it sat with him that this was New Zealand's dark shame, Davis said: "It doesn't sit with me, it's just totally unacceptable and it has been happening for decades.

"That's why I did ask for this role, knowing that there would be days like this where I have to stand up and front to the failings, not just of Oranga Tamariki and the system."

* Wording of recommendations has been altered for readability